Five examples of lame DMCA takedowns

Some DMCA takedowns should never have happened. Ars looks at five of the …

The Digital Millennium Copyright Act serves many purposes, some of which are good, but certain parts of it are ripe for abuse. The infamous DMCA takedown notice is at the top of anyone's list of most-abused parts of the act. These notices are meant to make it easy for content owners to have violations removed, and they do. But the notices also make it easy for anyone to try and silence criticism or stifle angles they simply don't like, even if the party in question is working perfectly within the confines of fair use.

Over the course of our coverage here at Ars, we've seen a number of DMCA takedown cases that were just plain lame. And, although there are plenty more lame cases that have happened in the world, we thought we would highlight some of our "favorite" ones to show how the DMCA takedown system can be used in an attempt to control content instead of merely enforcing copyrights. Plus, these examples just make us chuckle at the absurdity.

Psychic versus paranormal unbelievers

"Paranormalist" Uri Geller has always been somewhat of an eccentric dude—and how could he not be, having made claims that aliens gave him psychic powers and the ability to bend spoons with his mind? But when someone uploaded a clip to YouTube of a 1993 PBS piece showing how Geller's tricks could be easily produced, Geller was unable to use his mind to make the criticism disappear. So, he resorted to the next best thing: DMCA takedowns.

YouTube not only removed the video, it also suspended the account of the person who uploaded it for two weeks before the counter-notice was processed. The Electronic Frontier Foundation eventually got involved by filing a lawsuit against Geller—the magician was not the copyright owner to the video and was not otherwise authorized to act on behalf of the owner (PBS). Additionally, Geller could only lay claim to three seconds of the video, which the EFF argued qualified as fair use for criticism purposes.

Geller tried to sue back, but eventually the two parties settled their dispute. Part of the settlement involved Geller's company agreeing to license the disputed footage under a non-commercial Creative Commons license.

Cowboys versus animal rights activists

Since 2006, the animal rights group SHARK, or SHowing Animals Respect and Kindness, has filmed rodeos in an effort to show the ways in which they feel rodeo animals are routinely "brutalized, maimed, and shocked." The group began making use of YouTube to help spread its message about cruelty to animals, but that didn't sit well with the Professional Rodeo Cowboys Association. As it turns out, the PRCA had sanctioned several of the events caught on camera and was unhappy with the bad publicity it was receiving thanks to SHARK's YouTube uploads.

The cowboys began filing takedown notices with YouTube, claiming that the material was copyrighted. This was a tenuous argument at best—although PRCA was involved in setting up some of the events, the footage itself was taken by SHARK and was therefore copyrighted by the animal rights group, not PRCA. In fact, SHARK filed a lawsuit against PRCA for its own violations of the DMCA. The group said the cowboys ran afoul of the provisions, stating that anyone who "knowingly materially misrepresents" a case of supposed infringement would be liable for damages to the alleged infringer.

The two groups eventually settled their differences, however, with PRCA agreeing to fork over $25,000 to make the case go away. PRCA also agreed to take any future copyright claims directly to SHARK and that it would enforce any "no taping" policies at its events consistently—meaning they can't claim critics have violated the "contract" printed on rodeo tickets while allowing other attendees to record video.

The clip she was using was the (infamous) copyright notice that the NFL displays at the beginning of its broadcasts, warning viewers not to misuse content from the game they're about to watch. Seltzer took exception to this claim—as it clearly makes no concession for fair use—and wanted to show her students how content owners are beginning to exaggerate their rights.

In a fit of irony, the NFL sent a takedown notice to YouTube over the clip, to which she responded with a counter-notification explaining that the clip qualified as fair use for education purposes. A bit of back and forth later and the NFL found itself stuck between a rock and a hard place—because it had sent yet another takedown over the same video without acknowledging fair use, Seltzer argued that the NFL had violated a part of the DMCA that bars "knowingly materially misrepresent[ing] … that material or activity is infringing." According to Seltzer, the proper response would have been for the NFL to obtain a court order against her to keep the video offline, not send another takedown.

The video was finally restored once and for all, though the excuses provided by the NFL's PR team for not obtaining a court order were not enough to fully satisfy Seltzer.

Warner Music versus copyright reform advocate

Copyright reform advocate and political activist Larry Lessig has long been a heavy critic of DMCA abuse. That's why, when Warner Music issued a takedown over one of Lessig's own presentations, the world was left saying "oh no you di'int!

This takedown, however, did not seem to fall under the same circumstances as some of the others we have discussed here. Unlike Uri Geller or the Professional Rodeo Cowboys Association, there was no criticizing of Warner Music going on. Instead, Lessig's presentation likely ended up being taken down thanks to the music label's sweeping efforts to send takedowns over everything after YouTube licensing negotiations failed in late 2008. (The companies have since struck a new agreement.)

Lessig's presentation did use clips of Warner Music's songs, though he clearly believed they fell under Fair Use. Since then, Lessig's presentations have been subject to numerous other DMCA takedown notices—often at the hands of Warner Music—which he diligently continues to fight with counter-notifications to get his videos back online.

Music label versus dancing baby

Dancing babies aren't just reserved for '90s Internet meme nostalgia—they're part of new millennium YouTube lore as well. What parent wouldn't want to put a (to them) hilarious video of their kid bouncing around to a Prince song on the Internet for all to see? That's exactly what Stephanie Lenz did, only to find herself on the wrong side of Universal Music Group.

The music label took issue with Lenz's video of her 18-month-old son dancing to a the Prince song "Let's Go Crazy," which blasted from a stereo in the background; so they sent a DMCA takedown notice over it. In some parts of the video, the song ware barely even recognizable, but that didn't stop UMG from targeting the toddler. The video disappeared from YouTube, but the EFF got on the case with Lenz to push back.

Lenz not only responded with her own counter-notification, but she also sued UMG, arguing that the clip was "self-evident noninfringing fair use" and that UMG sent the notice in bad faith. Universal argued that, even if the clip was fair use, the notice was still sent in good faith. After plenty of back-and-forths, Lenz eventually won a summary judgment in the case and her video is back online.

That's not all, folks

There are plenty of other examples of individuals or companies abusing the DMCA to quash criticism, fair use, or just plain random uses of content, which is not what the law was meant for. Even the examples we highlighted here are relatively common. Do you know of any more absurdities that we can add to the roster?